Dear Ms. Overmeyer:

Thank you very much for returning my call. I greatly appreciate your help and your willingness to share this communication with the All Appropriate Inquiry Negotiated Rulemaking Committee. As I expressed briefly, ASSE is deeply concerned with what appears to be a direction the Committee is headed with regard to determining a definition of an Environmental Professional for the purpose of fulfilling mandates under the Brownfields Law.

Our specific concern is with the definition that has been sent out in the context of a survey of the committee and its constituents, which I have copied in immediately below:

E50 Survey on the Definition of
Environmental Professional

The EPA FACA (Regulatory Negotiating) Committee has drafted the following definition for “Environmental Professional”, which is starting to gain consensus from those serving on the committee and the constituents that they represent. The purpose of this survey is to 1.) Determine how many producers (providers of services) meet the three requirements included below and how many do not and 2.) Determine from the user (purchaser of service) side whether or not the three credentials meet the minimum requirements that they look for prior to retaining the services of a provider. The answers to these questions could serve as an excellent resource in the FACA Committee deliberations. If you have any questions about this definition, please contact Julie Kilgore at jk@wasatch-environmental.com.

Environmental Professional - a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of a release or threatened release (per §312.1(c)) to the surface or subsurface of a property. In addition, the person shall:

(a) hold a current Professional Engineer’s or Professional Geologist’s license or registration from a state or U.S. Territory (or the Commonwealth of Puerto Rico); or
(b) be licensed or certified by a state or U.S. Territory (or the Commonwealth of Puerto Rico) to perform environmental inquiries as defined in §312.21; or
(c) have a Bachelors of Science or Bachelors of Arts degree or higher in relevant disciplines of science, engineering or geology and the equivalent of five (5) years of full-time experience with increasing responsibilities after obtaining the Bachelors degree that includes the performance, review, and oversight of environmental site assessments and subsurface environmental investigations to characterize site conditions and determine the likelihood of a release or threatened release at the property.

This definition fails to recognize a great many individuals who have long worked in the environmental field with universally accepted accredited certifications requiring environmental capabilities more than adequate to perform the work required under the Brownfields Law. These include individuals with the Certified Safety Professional (CSP), the Certified Hazardous Materials Manager (CHMM), and the Certified Industrial Hygienist (CIH), to name three. These safety, health and environmental certifications are accredited by established, fully accepted accrediting bodies, including CESB, NCCA or ISO. Each requires significant education, training and experience in addressing environmental issues.

What is most puzzling is that the draft definition does not follow what appears to be the direction set by the Committee at its June 10-11 meeting. The summary of that meeting clearly states not only that certifications would be included but that the Committee was "seeking to balance rigor and flexibility without creating a major change in the market concerning who can conduct environmental site assessments..." Not including accredited certified safety, health and environmental professionals does not achieve flexibility and would certainly create a major change in the market. The following is taken from the summary:

Criterion I: The results of an inquiry by an environmental professional.
The Committee reviewed a number of options for defining environmental professional (EP), which were submitted by Committee members. Overall, the Committee is seeking to balance rigor and flexibility without creating a major change in the market concerning who can conduct environmental site assessments. Since all appropriate inquiry is a defense to potential liability under the Superfund Law, individuals purchasing services from an EP want to be assured that the definition of an EP will protect them from substandard work, but will also need to confirm the reputation of the individual or firm hired.

The Committee agreed to the concept of a list of equivalencies of credentials for defining the EP. The credentials will include various licenses, certifications, academic degrees, and practical experience. Most Committee members agreed that the most important EP qualification for conducting all appropriate inquiry is a significant number of years of practical experience conducting environmental site assessments. In addition, the Committee discussed that environmental professionals’ competencies should be appropriate to the type of assessment being performed. The Committee discussed the concept of requiring the AAI to be supervised and/or certified by an EP, but conducted, at least in part, by individuals with lesser qualifications. A work group will convene prior to the July meeting to review a pre-draft of the revised draft regulatory language.

Given the disparity between the direction apparently intended by the Committee and the definition that has been offered, ASSE appreciates this opportunity to provide our views to the Committee. We will also send a representative to the Committee's next meeting, September 9-10. While we certainly support the efforts of the Committee to fulfill its charge, it appears that the only professional group represented is the American Society of Civil Engineers. The views of safety, health and environmental professionals in developing a definition of who may do environmental work under federal regulations should necessarily be included.

ASSE is the oldest, largest safety, health and environmental professional association, representing about 30,000 members. More information on ASSE is available at www.asse.org.

Thank you very much for your time and your assistance.

Sincerely,
Dave Heidorn

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